AAT WINS

SUCCESSFUL APPEALS

AAT or Administrative Appeals Tribunal – appealing visa refusal or visa cancellation

If the Department of Immigration (Department of Home Affairs) refused your visa application or cancelled your visa, you or your immigration lawyer may apply to the AAT or Administrative Appeals Tribunal to review the visa refusal or visa cancellation decision.

The AAT is obliged to invite you to appear before it to give evidence and present arguments. At the hearing the Member will ask you a series of questions relating to your visa application or visa cancellation. If you are represented by an immigration lawyer, he or she will not be able to answer any questions for you. However, your immigration lawyer is able to direct the AAT Member to ask you specific questions that may help your case. The Member will also give your immigration lawyer an opportunity to make oral submissions before the hearing is concluded.

If you do not appear before the AAT when invited, your review application may be dismissed without any further consideration of the application. However, if you decided to attend a hearing, you may ask the AAT to reinstate the application within 14 days otherwise the original decision to dismiss your application is taken to be affirmed.

Successful Protection visa (subclass 866 visa) appeal – will not be harmed

Our client and her partner applied for Protection visa or subclass 866 visa on the basis of their sexual orientation or membership of a particular social group (LGBTIQ). The Department of Immigration refused to grant them the Protection visas or subclass 866 visas because they had not suffered past significant harm or being persecuted for reasons of their sexuality in their home country or are likely to face harm or persecution in the reasonably foreseeable future.

Before the AAT hearing, our immigration lawyer provided a legal submission and a statutory declaration drafted for our client detailing their experience relevant to their sexual orientation.

Our immigration lawyer’s legal submission summarised our clients’ claims; provided argument regarding the applicability of relevant law; referring to country information regarding the situation for same-sex couples in our clients’ home country.

Our immigration lawyer argued that our clients fear harm because they are members of a particular social group (LGBTIQ).

Our immigration lawyer also argued that our clients fear serious harm including severe discrimination, threats to their lives or liberty, exclusion, vilification and harassment, from members of the police and religious police, government officials, members of the public, their family members and the community.

The AAT, on the basis of our immigration lawyer legal submissions and oral submissions made at the hearing, accepted that our clients are persons in respect of whom Australia has protection obligations.

Our clients were subsequently granted permanent Protection visa or subclass 866 visa by the Department of Immigration.

 
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Successful Partner visa (subclass 309 visa) appeal – genuine relationship

Our client, an Australian permanent resident and a Thai national, sponsored her Vietnamese partner for an Offshore Partner visa or subclass 309 visa. The Offshore Partner visa (subclass 309 visa) application was lodged by their previous migration agent. Their application was refused by the Department of Immigration because the delegate was not satisfied they were in a genuine spousal relationship. They engaged us after their migration agent has lodged an AAT application to review the refusal.

Before the AAT hearing, our immigration lawyer provided to the AAT legal submissions and evidence supporting our clients’ genuine spousal relationship.

At the AAT hearing, our immigration lawyer made oral submissions addressing the concerns and issues raised by the Department of Immigration. As a result, the AAT accepted our clients were in a genuine spousal relationship at the time of application and at the time of decision.

On the basis of our legal submissions and evidence provided by our clients, the Department of Immigration subsequently granted an Offshore Partner subclass 309 visa to our client.

 
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Successful Partner visa or subclass 820 visa appeal – Sch 3 waiver

Our client’s Visitor or Tourist visa has expired when her previous immigration lawyer lodged her Onshore Partner visa (subclass 820) in 2016. A person may apply for Onshore Partner visa even if they do not a valid visa (unlawful non-citizen) if they are able to satisfy the Schedule 3 (Sch 3) criteria. The Department of Immigration decided that our client did not satisfy the Sch 3 criteria and concluded there were no compelling reasons to waive Sch 3 requirement. Her previous immigration lawyer lodged an application to the AAT to review the refusal.

She engaged us to represent her at the AAT. Our immigration lawyer provided the AAT with a comprehensive legal submission arguing that there were compassionate and compelling to waive the Sch 3 requirement.

At the AAT hearing, our client admitted that her Visitor (Tourist) visa had expired in 2014 and she could not return to her home country as she had converted to her husband’s religion after they were married. In addition, her husband had suffered from a medical condition that limit his mobility.

The AAT accepted that our client is fearful of returning to her home country because she is married to a Christian man and has converted from Islam to Christianity. And she would not be able to lodge a Partner visa (subclass 309) in her home country.

The AAT also accepted that our client’s husband relies on her for his physical well-being.

The AAT accepted our immigration lawyer legal submission and argument, even though our client remained in Australia for more than 2 years without a valid visa, there are compassionate and compelling reasons for the AAT not to apply the Sch 3 criteria.

The AAT remitted the matter back to the Department of Immigration with the direction that our client satisfied the Sch 3 requirement.

 
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Successful Student visa or subclass 500 visa appeal – financial capacity

Our client previous migration agent failed to explain to the Department of Immigration that she has genuine access to funds to pay for her living expenses and tuition fees for her stay in Australia. The Department refused her Student visa (subclass 500 visa) for failing to provide evidence of genuine access to funds.

Our immigration lawyer lodged an application to the AAT to review the Student visa (subclass 500 visa) decision.

Before the AAT hearing, our immigration lawyer provided legal submission and documentary evidence arguing that our client has genuine access to funds to support her studies in Australia.

On the basis of our immigration lawyer submission and evidence, the AAT did not consider it was necessary for our client and immigration lawyer to attend the hearing as the AAT Member was able to find in favour of our client.

The Department of Immigration subsequently granted our client a Student visa (subclass 500 visa).

 
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Successful Student visa or subclass 500 visa appeal (Case# 1) – not a genuine student

Our client’s previous migration agent lodged our client’s Student visa (subclass 500) visa. The Department of Immigration refused her application because our client has enrolled but did not complete a Bachelor of Business course, a hairdressing course, a beauty course, patisserie course and a Diploma of Hospitality Management course. The Department of Immigration stated that our client was initially granted a Student visa to study for a degree course, but she only enrolled in Certificate and Diploma courses.

Our client engaged us to represent her at the AAT to review the refusal. At the time of hearing, our client has only completed Certificate courses since coming to Australia in 2013 on a Student visa.

Before the AAT hearing, our immigration lawyer provided compelling submission explaining why our client changed so many courses as she was unsure of her career directions.

During the AAT hearing, our client explained that she was wrongly advised by her migration agent. At the same time our immigration lawyer argued that our client has now discovered that her passion was in cookery and she should be allowed to complete the rest of the courses she enrolled.

The AAT accepted our client explanation and our immigration lawyer submission. The AAT is satisfied that our client is a genuine student and remitted the matter back to the Department of Immigration.

The Department of Immigration granted our client a Student visa (subclass 500 visa). Our client can now look forward working as a qualified and Australian trained chef.

 
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Successful Student visa or subclass 500 visa appeal (Case# 2) – not a genuine student

Our client first came to Australia in 2013 to complete her secondary school education. However, she completed Year 10 and 11 but did not attend Year 12. Hence, she did not sit for her Victorian Certificate of Education (Senior Secondary School) exam.

Before her student visa ceased, she applied for a new Student visa (subclass 500 visa) to study Certificate courses, but her visa application was refused by the Department of Immigration. In refusing the visa application, the Department stated that our client did not study for 1 year, that is, did not complete her senior secondary or Year 12. In short, the Department was not satisfied that our client is a genuine student.

We lodged an application with the AAT to review the decision to refuse our client a Student visa (subclass 500 visa).

Before the AAT hearing, our immigration lawyer provided comprehensive submission explaining why our client did not study Year 12 and why she is now enrolled.

At the AAT hearing, our client explained her mistake for not studying for 1 year and why she is now enrolled. Our immigration lawyer also provided oral submissions to convince the AAT that our client is a genuine student.

The AAT stated that our client has breached her initial visa condition by not studying or not enrolled in a course. However, the AAT accepted that our client is now progressing academically in her studies. On the basis of our client evidence and our immigration lawyer submissions, the AAT remitted the matter back to the Department of Immigration confirming that she is a genuine student.

The Department of Immigration subsequently granted our client a Student visa (subclass 500 visa).

 
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Successful Student visa or subclass 500 visa appeal (Case# 3) – not a genuine student

Our client first came to Australia sometime in 2007 and overstayed her visa. She was detained and later deported for working illegally. Sometime in 2017, she managed to obtain a Visitor (ETA Class UD Subclass 601) visa. While in Australia, our client applied for a Student (subclass 500) visa but was refused.

In refusing our client the visa, the Department of Immigration stated that she only intended to visit her sibling and stay for 3 weeks. The Department concluded that she is not a genuine student because she has previous overstayed her visa and was deported for working illegally.

Our client asked us to lodge an application with the AAT to review the refusal decision.

Before the AAT hearing, our immigration lawyer provided a legal submission addressing the issue of our client overstaying her earlier Tourist visa and working illegally.

A few days before the AAT hearing, our immigration lawyer carefully explained to our client what questions the Member may ask so that she is prepared for the hearing.

At the hearing, our client was able to answer the Member questions confidently. And our immigration lawyer makes oral submissions arguing that our client may have made mistakes when she first came to Australia but, as evidence provided to the AAT demonstrate, she is a genuine student.

The AAT accepted our immigration lawyer submissions and remitted the matter back to the Department.

The Department subsequently granted our client a Student (subclass 500) visa. With a valid Student visa, our client is able to continue her studies and work legally.

 
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Successful Student visa or subclass 500 visa appeal (Case# 4) – not a genuine student

Our client first came to Australia on a Visitor (ETA Class UD Subclass 601) and later lodged an application for a Student (subclass 500) visa. The Department of Immigration refused her application because her previous migration agent did not explain properly the value of her courses to her future career. The Department was unable to accept that our client travelling as a tourist, leaving her family in her home country, would make a significant change to her initially intentions of travelling to Australia for tourism. In short, the Department was not satisfied that our client is a genuine student.

Our client previous migration agent lodged an application to the AAT to review the refusal decision.

Our client later approached and engaged us to represent her at the AAT.

Before the AAT hearing, our immigration lawyer drafted a legal submission and a GTE (Genuine Temporary Entrant) Statement addressing the Department concerns and issues.

A few days before the AAT hearing, our immigration lawyer carefully prepared our client for the hearing.

At the AAT hearing, our client was able to explain why she travelled to Australia on a Visitor visa and why she applied for a Student (subclass 500) visa while she was holidaying in Australia.

She was also able to explain confidently to the AAT Member why she has chosen the courses to study in Australia.

Our immigration lawyer argued that our client has been making good academic progress since enrolling as a student. And she is doing what the holder of a student visa should do.

The AAT accepted our immigration lawyer submissions that our client is a genuine student. The AAT remitted the matter back to the Department.

The Department subsequently issued our client with a Student (subclass 500) visa. Our client is now studying and is able to work while studying.

 
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